Articles Posted
in 2013

A heads up to all interested open access folks that the debut issue of The Journal of Open Access to Law (JOAL) is up and ready for consumption at http://joal.law.cornell.edu/. JOAL, a multidisciplinary journal related to research on open and online legal material, was conceived during a series of Law Via the Internet conferences. Tom Bruce gives a run down of key players who made this happen and lays out the goals of the journal in his latest B-Screeds post. The inaugural issue contains articles on legal informatics, open government data, legal services and free access to law.

In the memorandum, Mr. Tauberer and his colleagues discuss how open licensing protocols can be applied by various federal government authors—agencies in house, through contractors, or a mix—to different outputs, such as codes, laws, reports, etc. The overriding principle is that because the federal government’s material is not subject to copyright protection, a CC0 license will make it clear to users that the government disclaims its copyright.

When contractors are involved, things get a little more complicated: “Works produced under a contract with the government may be subject to copyright protection. Any such contract should specify that any copyright in the work is transferred to the government.” Transferring the copyright to the government, of course, obviates it, as federal government works are not subject to copyright protection under the Copyright Act. For mixes of government and non-government works, they recommend that “non-governmental contributors be required to waive copyright protection to their submissions,” which is another way of bringing taxpayer funded government work product into the public domain. This shouldn’t be a controversial proposition, but we’ve seen what happens when private standards are incorporated by reference into law.

This case involved three Enhanced 9-1-1 (E-9-1-1) calls regarding an altercation that resulted in three people being shot. MaineToday Media, Inc. sent a series of requests to inspect and copy the three transcripts to the police department, state police, attorney general, and others. The State denied the requests, claiming that the transcripts constituted “intelligence and investigative information” in a pending criminal matter and were therefore confidential under the Criminal History Record Information Act. MaineToday filed suit against the State, arguing that the Freedom of Access Act (FOAA) mandated disclosure of the transcripts as public records and that no exception to their disclosure applied. The superior court affirmed the State’s denial of MaineToday’s request. The Supreme Court vacated the lower court’s judgment, holding that the E-9-1-1 transcripts, as redacted pursuant to 25 Me. Rev. Stat. 2929(2)-(3), were public records subject to disclosure under the FOAA.

The Administrative Office of the Courts announced yesterday that FDSys will now include opinions from 64 federal courts. The program to integrate federal court opinions into FDSys began in 2011. In 2011, they added opinions from 12 courts. In 2012, they increased that number to 28 courts. In February of this year, they announced that they were expanding the program. And now we know they have increased the number of courts to 64. According to today’s press release, they are backfilling some jurisdictions, putting in an archive back to 2004. They claim to have 750,000 opinions in FDSys now.

According to the statement, “FDsys currently contains opinions from 8 appellate courts, 20 district courts, and 35 bankruptcy courts.” To put this in perspective, there are 17 circuit courts, 94 district courts, and 195 bankruptcy courts. All together, they are pulling opinions from 63 of 307 federal courts (roughly). That’s 21% of the federal jurisdictions in 3 years.

As usual, I feel compelled to say “it’s great that they’re doing this, BUT”—they’re focusing on the wrong things. Why are they pulling documents from district courts and bankruptcy courts? The case law that most people care about is appellate opinions that create precedent. In federal jurisdictions, this means the Circuit Courts of Appeal and the United States Supreme Court. FDSys has no SCOTUS opinions (which are freely available on the Court’s site), and only about half of the Circuit Courts of Appeal. Some district court opinions are interesting and useful, and I suppose the same is true for bankruptcy court opinions, but why are they being added ahead of the Supreme Court? 750,000 documents is a lot—my guess is they’re pulling in random orders and rulings that are part of the public record but not especially useful in legal research.

Fall has finally arrived in sunny California. For weeks, we have witnessed the shortening rays of the sun’s glorious light. Now, as the leaves explode in color to red, orange and yellow hues, we know that the holiday season is but a few weeks away.

For some, the holiday season can be stressful. How much turkey should I prepare for Thanksgiving dinner? Can I recycle a resolution from a previous New Year’s day? But one question that should be easier to answer this year is how much money to allocate to health flexible spending arrangements (FSAs).

Officer Stanton and his partner responded to a call about a disturbance involving a person with a baseball bat. Stanton was familiar with the LaMesa neighborhood, known for gang violence. The officers, wearing uniforms and driving a marked police vehicle, approached the location and noticed men walking in the street. Seeing the police car, two men turned into an apartment complex. Patrick crossed the street about 25 yards in front of Stanton’s car and ran toward a residence. Stanton did not see a baseball bat, but considered Patrick’s behavior suspicious and decided to investigate. Stanton exited his car, called out “police,” and ordered Patrick to stop. Patrick did not stop, but “looked directly at Stanton,” and went through the gate of the six-foot wooden fence enclosing Sims’ front yard. Stanton believed that Patrick had committed a jailable misdemeanor by disobeying his order, “fear[ed] for [his] safety” and made the “split-second decision” to kick open the gate. Sims was behind the gate when it flew open, striking and injuring Sims. Sims sued under 42 U.S.C 1983. The district court granted summary judgment to Stanton. The Ninth Circuit reversed, holding that Stanton’s warrantless entry was unconstitutional because Sims had the same expectation of privacy in her curtilage as in her home itself, there was no immediate danger, and Patrick had committed only a minor offense; under clearly established law Stanton’s pursuit of Patrick did not justify warrantless entry and Stanton was not entitled to qualified immunity. The Supreme Court reversed, noting that courts nationwide are divided on whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect. The Ninth Circuit read “too broadly” Supreme Court precedent that did not involve hot pursuit. The Court did not determine whether Stanton’s entry was constitutional; Stanton may have been mistaken in believing his actions were justified, but was not “plainly incompetent.”

The famously versatile hot sauce Sriracha may be in legal hot water. Its manufacturer, Huy Fong Foods, Inc., is facing a public nuisance lawsuit brought by the town in which its manufacturing facility resides. According to the complaint, odors and irritants from the facility are causing physical harm and discomfort to the residents of the town of Irwindale. The city allegedly received several complaints about the facility and as a result arranged to meet with a representative from the company to address the problem. Although the representative reportedly agreed to take measures to correct the problem, there was no change in the emanation of offensive odors from the factory.

According to the complaint, the city issued a courtesy notice, and after several failed attempts to discuss the issue with Huy Fong Foods, it sent an official notice of violation. Ultimately it filed this lawsuit asking for the factory to be shut down until a solution is proposed and implemented.

Representatives from Huy Fong Foods have reportedly warned that the price of the popular hot sauce could increase as a result, but that seems trivial in light of the citizens of Irwindale apparently having to breathe noxious fumes akin to pepper spray.

Courthouse News reported this week on the “land grab” in California’s local court systems. When the courts announced last year that they were killing the CCMS (California Case Management System), vendors pounced on the opportunity to provide contracted solutions in its place. CCMS was a project started by the California courts over ten years ago. It was intended to link all of the county and state courthouses together into a centralized docketing system. As Courthouse news reports, however,

The massive CCMS project was deep-sixed last year by the Judicial Council under pressure from the Legislature, after the Administrative Office of the Courts had spent $520 million in taxpayer money over ten years on a project that was nowhere near completion and carried a projected price tag of $1.9 billion.

Now that CCMS is dead, Courts are turning to the private sector to update their docketing systems, which languished while waiting for the new system. Three bidders have emerged as candidates for the new systems: New Mexico-based Justice Systems Inc., Texas-based Tyler Technologies, and Pennsylvania-based LT-Tech owned by Thomson Reuters (formerly West Publishing). According to Courthouse News, “The deals have three basic financial components, licensing and installation for millions of dollars, yearly upkeep for hundreds of thousands of dollars, and, a golden egg, the right to charge lawyers a fee, generally around $5, for every document electronically filed.”

The Missouri Supreme Court, sitting en banc, issued a decision yesterday that, on its face, seems like a defeat for proponents of same-sex marriage in that state. In Glossip v. Missouri Department of Transportation and Highway Patrol Employees’ Retirement System, the state’s highest court upheld a state statute that requires a person be married to a highway patrol employee in order to receive benefits after the employee’s death. Although the Missouri constitution prohibits recognition of same-sex marriages, the plaintiff did not challenge that provision (so the court did not rule on that).

The facts of the case are fairly straightforward. Dennis Engelhard and Kelly Glossip, both men, were in a domestic partnership and “held [themselves] out to [their] families and [their] community as a couple in a committed, marital relationship.” Engelhard was a state highway patrolman and was killed in the line of duty. Glossip applied for survivor benefits, and his application was denied because the relevant state law allows benefits only for a surviving “spouse.” After his application was rejected, Glossip filed this lawsuit challenging the state statute restricting survivor benefits based on marital status, as well as the statute defining marriage as between one man and one woman. Importantly, Glossip did not challenge the state’s constitutional provision prohibiting recognition of same-sex marriages.

The Fourth Circuit Court of Appeals recently unsealed the documents in the FBI action against Lavabit, Inc – Edward Snowden’s email provider. In July of 2013, the FBI sought a search warrant in the Eastern District of Virginia. Rather than turn over the encryption key that would allow the government to read the emails that Snowden sent, and risking exposure for other clients of the service, Lavabit closed its operations. You can read about the case at Wired and Techdirt. We found the (unsealed) docket and have it featured here, with all of the filings.

Illinois law dean and professor Vikram David Amar comments on the Supreme Court’s recent decision in Franchise Tax Board v. Hyatt and what it says about stare decisis, the notion that prior Court rulings are entitled to respect in the Court today.